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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MANUEL A. BENAVIDEZ, §
§
Plaintiff, §
§ No. 3:07-CV-01850-P
v. §
§
THE CITY OF IRVING, TEXAS and §
HERBERT A. GEARS, THOMAS D. §
SPINK, ELIZABETH (BETH) VAN §
DUYNE, ALLAN E. MEAGHER, LEWIS §
PATRICK, ROSE CANNADY, RICK §
STOPPER, SAM SMITH, and JOE §
PHILLIP, in their official capacities, §
§
Defendants. §

ORDER

On November 6, 2007, Manuel A. Benavidez (“Plaintiff”) brought this suit against the City

of Irving (“City” or “Irving”), its mayor, and its city council members (collectively, “Defendants”),

challenging the legality of Irving’s at-large electoral system under Section 2 of the Voting Rights

Act. Section 2 prohibits voting practices that deny or abridge any citizen’s right to vote on account

of race or color. 42 U.S.C. § 1973(a). Plaintiff maintained that Irving’s at-large electoral system

diluted the voting power of Irving’s Hispanic voters, and thus denied them the opportunity to elect

representatives of their choice. (Am. Compl. 8.) After the Court denied Defendants’ motion for

summary judgment based on Plaintiff’s standing to bring this action [Docket #47], the Parties

proceeded to a four-day bench trial that concluded on February 20, 2009. On July 15, 2009, this

Court ruled that Irving’s current at-large method of electing members to the city council violates

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Section 2 by diluting Hispanic voting power. [Docket #57.] The Court’s accompanying Final

Judgment enjoined the City from administering, implementing, or conducting any future city council

elections under the at-large method.

Once a Section 2 violation has been found, the affected political subdivision should be given

the opportunity to devise remedies for the violation. See Westwego Citizens for Better Gov’t v. City

of Westwego, 946 F.2d 1109, 1124 (5th Cir. 1991). Thus, the Court instructed the Parties to attempt

to arrive at an agreed-upon election and redistricting plan as well as a schedule for implementation

of that plan that would remedy the Section 2 violation. [Docket #58.]

In accordance with the Final Judgment, Plaintiff and Defendants agreed on an election and

redistricting plan (“Proposed Plan”). On September 3, 2009, the city council approved the Proposed

Plan with a vote of 6-3. They submitted that Proposed Plan to the Court on September 28, 2009.

[Docket #74.] The Proposed Plan creates a 6-2-1 election system in which six members of the

council are elected from single-member districts, and two members of the city council and the mayor

are elected from the City at-large. According to the Parties, “[t]he proposed plan includes a district

– the proposed Place 1 district [“District 1"]/Hispanic opportunity district – that contains the area

with the highest percentage of Hispanic citizens of voting age, while also recognizing the significant

number of Hispanic voters who life outside that area.” [Docket #74 at 2.] “The proposed plan

ensures that the predominantly Hispanic district will be on the ballot at the next municipal election,

which will occur in May 2010.” (Id.) “That district will not have an incumbent, which will increase

the opportunity for Hispanic voters to elect the candidate of their choice.” (Id.)

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On November 6, 2009, two of the City’s council members who had voted against the

Proposed Plan (“Council Members”), submitted a letter to the Court outlining their four objections

to the Proposed Plan’s creation of District 1.1 First, they contend that the proposed District 1 is the

product of racial gerrymandering because the boundaries of District 1 were drawn solely on the basis

of Spanish surname residents. Second, they argue that the proposed District 1 was drawn without

regard to traditional districting principles, such as compactness, contiguousness, traditional

boundaries, and communities of interest. They submit that a visual inspection of the proposed

District 1 reveals a bizarre configuration that stretches 5.6 miles from east to west and 2.5 miles from

south to north, while traversing seven Irving neighborhoods. Third, they maintain that the proposed

District 1 will be a “nightmare” for election officials, candidates and voters because it will be

difficult to determine where the boundaries are, who the voters are, where the voters will be required

to vote and who the candidates are. Finally, they complain that the Proposed District 1 is unfair to

black voters because it “dilutes black votes by dividing areas of higher percentage black residents

among four proposed districts – 3, 5, 6 and 7. [Docket #86.] In the Council Members’ letter, they

explain that they are “personally affected by the proposed plan, being incumbent City Council

members for Places 1 and 2, which are being eliminated by the plan. Under the plan, we will no

longer reside in the district in which we resided when elected.” (Id.) They write that they believe

a rational and sensible plan can be drawn that will “afford Hispanic candidates the same opportunity

1
Before the Court could approve the Proposed Plan, it was subject to preclearance by the Department of
Justice under Section 5 of the Voting Rights Act, 42 U.S.C.A § 1973c. See McDaniel v. Sanchez, 452 U.S. 130, 153
(1981); 28 C.F.R. § 51.18(a) (“Changes affecting voting that are ordered by a Federal court are subject to the
preclearance requirement of Section 5 to the extent that they reflect the policy choices of the submitting authority.”)
The Department of Justice issued its preclearance letter on January 7, 2010.

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to be elected, yet will observe and respect traditional districting principles.” (Id.) They request that

the Parties be instructed to confer further. Id.

The Court asked the Parties to submit a response to the Council Members’ letter. In their

response(s), the Parties argue that the Council Members have no standing to raise these issues in

their official capacities, nor do they have standing to raise the legal points in their individual

capacities. [Docket #84.] They also argue that District 1 meets the Constitutional requirements for

Section 2 remedial plans, that it was drawn based on consideration of traditional districting

principles, including compactness, and that it is not an infeasible district for election officials,

candidates, and voters. [Docket #82.]

It is by now well settled that “the irreducible constitutional minimum of standing contains

three elements. First, the plaintiff must have suffered an ‘injury in fact’ – an invasion of a legally

protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural

or hypothetical. Second, there must be a causal connection between the injury and the conduct

complained of . . . Third, it must be likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

According to the Complaint, Benavidez sued the City of Irving and all its city council

members in their official capacities. [Docket #1 at 1.] A public servant sued in his official capacity

is the same as suing the entity itself. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543-

44 (1986). Thus, the Council Members have no interest in the litigation different or separate from

the interest of the City. As city council members, they have no personal stake in the jointly agreed-

upon Proposed Plan and therefore do not have standing to challenge it. They may not step into the

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shoes of the City and take a position contrary to it. See id. Therefore, in their official capacities, the

Council Members are bound by the vote of the city council to authorize the Proposed Plan. Though

the Council Members certainly had the right to vote against authorizing the Proposed Plan, once they

were outvoted, the Council Members were bound by the vote of the city council. They may not

object to the Proposed Plan in their official capacities.

Next the Court must consider whether the Council Members have standing to assert legal

claims against the Proposed Plan in their individual capacities. In their letter, the Council Members

allege that the Proposed Plan’s District 1 is a product of racial gerrymandering and that the Proposed

Plan discriminates against black voters. In United States v. Hays, the Supreme Court denied the

plaintiffs standing to challenge a plan based on racial gerrymandering because the plaintiffs did not

live in the district that was the focus of their claim. 515 U.S. 737 (1995). Since there is no evidence

that either Council Member resides in District 1, neither has standing to raise a claim that District

1 is racially gerrymandered.

Likewise, the Council Members lack standing to bring a claim of racial discrimination. They

contend that the Proposed Plan is unfair to black voters, but there is no evidence that either Council

Member is black and therefore there is no evidence they have suffered an injury-in-fact based on

their race. The Supreme Court has made clear that “even if a governmental actor is discriminating

on the basis of race, the resulting injury ‘accords a basis for standing only to those persons who are

personally denied equal treatment by the challenged discriminatory conduct.’” Id. at 743-44.

Because there is no evidence that the Council Members live in District 1 or are black voters,

they do not have standing to assert these claims in their individual capacities. See id. at 745. The

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Council Members are merely asserting generalized grievances against governmental conduct of

which they disapprove.

The fact that the Council Members’ positions will be eliminated by this Proposed Plan does

not give them standing to challenge the Proposed Plan. There is no evidence that the Council

Members’s own city council positions and districts are legally protected and therefore the Council

Members have not suffered an injury-in-fact.

The Council Members also argue that (1) the Proposed Plan was drawn without regard to

traditional districting principles and (2) implementation of the Proposed Plan will be a “nightmare”

for election officials, candidates and voters. [Docket #86.]

In its Final Judgment, the Court instructed the Parties to meet and attempt to arrive at an

agreed-upon election and redistricting plan that remedies the Section 2 violation, which they did.

[Docket #58.] As long as the proposed remedy “is consistent with constitutional norms and is not

itself vulnerable to legal challenge,” the district court should defer to the government’s policy

choices in fashioning a remedy. See White v. Weiser, 412 U.S. 783, 797 (1973).

The Council Members contend that the remedial Proposed Plan should not be accepted by

the Court because “a more rational and sensible plan can be drawn [that] will afford Hispanic

candidates the same opportunity to be elected, yet will observe and respect traditional districting

principles.” [Docket #86.] They oppose the configuration of District 1 because it is “confusing,

illogical, and difficult.” [Docket #88.] The Supreme Court has held that courts must defer to the

legislative judgment that a plan reflects and uphold the plan when (1) there is no objection to the

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plan by the Attorney General, and (2) there is no finding of a constitutional or statutory violation

with respect to the districts. Upham v. Seamon, 456 U.S. 37, 40-41 (1982).

The Council Members do not argue that the Proposed Plan is unconstitutional or that it

violates any statute. [Docket #86.] They have not alleged any Section 2 violation that would warrant

analysis of the Proposed Plan’s compactness and communities of interest. They simply object to the

policy choices made by the Parties in developing their remedial plan.

Nor can the Court reject the Proposed Plan because it may be confusing for candidates and

election officials. The Court has no discretion to reject the Proposed Plan on the basis that maybe

the Parties can come up with a “better” one.

For these reasons, the Court hereby OVERRULES the Council Members’ objections and

will enter judgment as requested jointly by the Parties. A Final Judgment will be entered herewith.

It is SO ORDERED, this 3rd day of February 2010.

_________________________________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

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